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What is

tution:

179, 245.

is a

law?

BE

MADE

IN

PURSUANCE

246.

Bound. be bound thereby, any thing in the Constitution or 478.

laws of any State to the contrary not withstanding.

238. This CONSTITUTION creates the government. Of course it the Consti- stands paramount. And if any law of Congress, treaty, or State

law, be found to be a plain infraction of this Constitution, they will 195, 242. be held to be void. The object was to establish a government 2, 67, 68. which, to the extent of its powers, is supreme. Story's Const.

$ 1837; Ableman v. Booth, 21 How. 517, 520. A law, by the very meaning of the term, includes supremacy. Story's Const. § 1537. And the government must be strong enough to execute its own laws,

by its own tribunals. Ableman v. Booth, 21 How. 517. The su195-198. premacy could not peacefully be maintained unless clothed with

judicial power. Id. 518, 519. This clause fully compared with
the judicial power. Id.
239. “AND ALL LAWS OF THE UNITED STATES WHICH SHALL

THEREOF."--A LAW is a solemn expression of legislative will. Louisiana Civil Code, Art. I. It is a rule of action. It is a rule of civil conduct prescribed by the "supreme" power in a State. 1 Bl. Com. 44; 1 Kent's Com., Lect. XX. p. 417. It includes supremacy. Story's Const. $ 1738. See Federalist, Nos. 33, 64; Gibbons v. Ogden, 9 Wh. 210, 211; Mc

Culoch v. Maryland, 4 Wh. 405, 406. All such laws, made by the 195, 203,

general government, upon the rights, duties, and subjects specially enumerated and confided to their jurisdiction, are necessarily exclusive and supreme, as well by express provision as by necessary im. plication. Sims' Case, 7 Cush. 729 And the general government has the power to cause such laws to be carried into full execution. by its own powers, without dependence upon State authority, with.

out any let or restraint imposed by it. Id. 178 A law is made in pursuance of the Constitution, whenerer it is

enacted by a constitutional quorum of Congress and approved by the President; or, being returned with his objections, is passed'orer the veto by the necessary two-thirds vote. It then becomes the supreme law; and is generally regarded as binding until decided to be unconstitutional by the Supreme Court of the United States, in a proper case arising upon the law.

After grave consideration, cases might arise where. after the laws had been passed, with all constitutional forms and time, and placed on statute books, it wonld be the duty of the executive to refuse to carry them out, regardless of' consequences. This would be involv. ing the country in a justitiable civil war. President Johnson's Mes. sage, 3d Dec., 1867. The editor cannot give this sentiment without expressing his disbelief in its correctness.

The sovereignty to be created was to be limited in its powers of legislation, and if it passed a law not authorized by its enumerated powers, it was not to be regarded as the supreme law of the land, nor were the State judges bound to carry it into execution.

And as the courts of a State, and the courts of the United States, might. and certainly would, often differ as to the extent of the powers conferred by the government, it was manifest that serious controversies would arise between the authorities of the United States and of the

211. 183.

treaty!

195.

States, which must be settled by force of arms, unless some tribunal 138
was created to decide between them finally and without appeal.
Ableman v. Booth, 21 How. 519, 520. The Supreme Court of the
United States shown to be that tribunal. Id. 520-526.

And no power is more clearly conferred by the Constitution and laws of the United States, than the power of this court to decide, ultimately and finally, all cases arising under such Constitution and laws, &c. Id. 525.

240. A TREATY is a solemn agreement between nations. Fos. Define a ter v. Neilson, 2 Pet. 314.

178. Whenever a right grows out of, or is protected by, a treaty, it is sanctioned against all the laws and judicial decisions of the States; What is the and whoever may have this right, it is to be protected. Owing v. rule as to

treaties? Norwood's Lessee, 5 Cr. 348; People v. Gerke, 4 Am. L. R. 604; 6 Opin. 291. But though a treaty is a law of the land, and its provisions must be regarded by the courts as equivalent to an act of the legislature when it operates directly on a subject, yet, if it be merely a stipulation for future legislation by Congress it addresses itself to the political and not to the judicial department, and the latter must await the action of the former. Foster v. Neilson, 2 Pet. 253. • Shall be confirmed," was construed to act presently on the perfect Spanish grants. Id. A treaty ratified with proper formalities, is, by the Constitution, the supreme law of the land, and the courts have no power to examine into the authority of the persong by whom it was entered into on behalf of the foreign nation. Doe v. Braden, 16 How, 635. Though a treaty is the law of the land, under the Constitution, Congress may repeal it, so far as it is municipal law, provided its subject-matter be within the legislative power. Taylor v. Morton, 2 Curt. C. C. 454; Talbot v. Seaman, 1 Cr. 1; Ware v. Hylton, 3 Dall. 361; Story's Const. $ 1838.

A treaty concluded by the President and Senate binds the nation, What is the in the agrregate, and all its subordinate authorities, and its citizens obligation as individnals, to the observance of the stipulations contained in it.ofa treaty? (Ware v. Hylton, 3 Dall. 199; Worcester v. Georgia, 6 Pet. 575.) Fellows y. Dennison, 23 N. Y. R. (9 Smith), 427.

** SUPREME LAW OF THE LAND."— The highest law; that which What is the binds all the people of the nation, and cannot be abrogated by the supreme States. It was intended to declare that, to the extent of its pow. 2, 6, 238. ers, the Constitution, laws, and treaties of the United States, are prescribed by the "supreme power of the State.” and are supreme. This power of the government can be exercised by Congress, or, to the extent of the treaty-making power, by the President and Senate. The national rule of action then is: 1. The Constitution: What is the 2. Acts of Congress; 3. Treaties; 4. The judicial decisions as national rulo precedents. The State constitutions, laws, and decisions on, ara

of action : subordinate to these. See Ableman v. Booth, 21 How. 525 ; Story's Const., § 1836-1841; Federalist, No. 33 ; Gibbons v. Og. den, 9 Wheat. 210, 21!; McCulloch v. Maryland, 4 Wheat. 405, 406; Letter of Congress, 13th April, 1787; 12 Journal of Con. gress. 32–36; 1 Wirt's State Papers, 45, 47, 71, 81, 145 ; Sergt's Const. ch. 21, pp. 212, 219; ch. 34, pp. 406, 407; Ware v. Hylton,

3 Dall. 270-277; Journal of Convention. 222, 282, 283, 293 ; Fedflow is a eralist, Nos. 44, 64; Debates on the British Treaty of 1794; Jourtreaty to be nal of the H. of Reps., 6th April, 1796. Marshali's Life of Washregnlated ?

ington, ch. 8, pp. 650–659. Sergi's Const. 3d edition, ch. 3+, 195. p. 410; 1 Debates on British Treaty, by Bache (1796), pp. 2374–386 :

4 Elliot's Debates, 241-248. A treaty is to be regarded by courts of justice as equivalent to an act of the legislature whenever it operates itself without the aid of any legislative provision. Foster

v. Neilson, 2 Pet. 314, What was

See Jefferson's Opinion in Washington's Cabinet, that a treaty Jefferson's opinion?

was a law of a superior order (Greek Treaty of 1790), and could not be repealed by a future one; and see a different view, 4 Jeffer.

son's Corresp. 497, 498; Wheaton's Life of Pinckney, p. 517. 189, 154-161, 241, The Constitution or laws of any State to the contrary 23. 210 21 notwithstanding. It matters not whether the action of a State is

219, 226, 225.

organic, and in its Constitution, or any ordinance; or whether it be in a statute, if it violate the Constitution, laws, or treaty of the United States, it is simply void, and “the judges of every State"

are bound by the supreme law, and not by the State law. Marbury 142, 143. v. Madison, 1 Cr. 137, 176; Calder v. Bull, 3 Dall. 386: Satterlee

v. Matthewson, 2 Pet. 380, 113; Ex parte Garland, + Wall. 399; Cummings v. Missouri, 5 Wall. 277, 3:29.

All courts will declare State Constitutions and laws, which clearly 239. violate the Constitution, laws, or treaties of the United States, void.

But only in clear cases. Id. See particularly Ableman v. Booth,

21 How. 507-526. Who shall [3.] The senators and representatives before menbe bound by

tioned, and the members o the several State legisla

tures, and all executive and judicial officers, both of 19, 35, 46, 174, 152.

the United States and of the several States, shall be

bound, by oath or affirmation, to support this ConstiAny reli

tution ; but no religious test shall ever be required as 91011s test required: a qualification to any oflice or public trust under the

United States.

212. “THE SENATORS,” &c.—The classification embraces all the officers are legislative, executive, and judicial office

the United States, and of the States. The practice has also been to embrace all the 211-242.

ministerial and militia officers of the country. The object doubtless was to procure solemn recognitions of the preceding clause. Story's Const. $ 1844-1846. Especial attention is invited to the fourteenth amendment. The disqualification for participation in rebel. lion seems to be based upon the higher obligation to observe this oath.

The act of 1st June, 1789, prescribed the following oath:What was ""), A. B., do solemnly swear, or affirm (as the case may be), that

I will support the Constitution of the United States." 1 Stat. 23; 1
Brightly's Dig. 706.

the outh or office?

What

embriced ? 229-231.

274-285.

tho oath?

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480,

286.

No otier oath is required. “yet he would be charged withi in.
sanity who would contend that the legislature miglit not superadd
to the oath directed by the Constitution such other oath of office
as its wisdom might suggest." (McCulloch v. Maryland, 4 Wheat.
416.) The Cnited States v. Rhodes (by Justice Swayne, in Ken-
lucky, October T. 1867).

This is the last and closing clause of the Constitution, and in- 174, 152
serted when the whole framework of the government had been
adopted by the convention. It binds the citizens and the States
And certainly no faith could be more deliberately and solemnly
pledged than that which every State has pledged to the other
States to support the Constitution as it is, in all its provisions, until
thes shall be altered in the manner which the Constitution itself
prescribes. In the emphatic language of the pledge required, it is
to support this constitution. Ableman v. Booth, 21 How. 524, 525.

The act of Congress of 20 July, 1862, 12 Stat. 502, § 1, requires What is the all federal officers to take the following oath :-"1, A. B., do test oath ? solemnly swear (or aflirm), that I have never voluntarily borne arms against the United States since I have been a citizen thereof; that I hare voluntarily given no aid, countenance, counsel. or en. couragement to persons engaged in arined hostility thereto; that I have neither sought nor accepted, nor attempted to exercise the functions of any office whatever, under any authority or pretended authority in liostility to the United States; that I have not yielded a voluntary support to any pretended government, authority: power, or Constitution within the United States, hostile or inimical thereto. And I do further swear (or affirm) that, to the best of my knowl. edge and ability, I will support and defend the Constitution of the United States, against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of erasion, and that I will well and faithfully discharge the duties of the office on which I am about to enter, so help me God.”

The oath may be taken before any state other authorized to 142, 148.
administer oaths. If it be falsely taken, or if it be subsequently
violated, it is perjury. The oath is required of all attorney's prac-
ticing in the federal courts, and before any of thie departments
of government, and of all captains of vesseis. 2 Brightly's Dig.
P: +8 and p. 50: 13 St. 610. It was held by Judge Busteed. of the
United States District Court of Alabama, that, as to lawyers, this
test oath was unconstitutional.

The statute has been held to be unconstitutional as to attorneys How far
of the Supreme Court of the United States who were such before unconstitu-
the rebellion, and who could not take the oath because of their par-

Garland's Case, 4 Wall. 381.
“No Religious Test” was doubtless used in the sense of the What is a
statinte of 25 Charles II., which reqnired an oath and declaration religious
against tran substantiation, which di officers, civil and military.
were formerly obliged to take within six months after their admis-
sion. See Webster's Dic., Test. The object was to cut off all pre-
tense of alliance between Church and State. Story's Const. S 184,

tional?

ticipation in it.

245. 285. 481.

754; 4 Black. Com. 41, 53-57; 2 Kent's Com. Lect. 24, 34, 35; Rawle's Const. ch. 10, p. 121.

fied ?

ARTICLE VII. By how

The ratification of the conventions of nine States many States to be rati- shall be sufficient for the establishment of this Con

stitution between the States so ratifying the same. Done in Convention, by the unanimous consent

of the States present, the seventeenth day of September, in the year of our Lord one thousand seven hundred and eighty-seven, and of the independence of the United States of America the twelfth. In witness whereof, we have hereunto subscribed our names.

GEORGE WASHINGTON, Presid't,

And deputy from Virginia

New Hampshire.

Connecticut.
John LANGDON,

WM. SAML, JOHNSON,
NICHOLAS GILMAN.

ROGER SHERMAN.
Massachusetts.

New York.
NATIIANIEL GORHAM,

ALEXANDER HAMILTOX
Rufus KING.

Maryland.
New Jersey.

JADES M'HENRY,
WIL: LIVINGSTON,

DAN: OF ST. THOS. JENIFER,
DAVID BREARLY,

DANL, CARROLL.
WM. PATERSON,

Virginia.
JONA: DAYTON.

JOHN BLAIR,
Pennsylvania. JAMES MADISON, JR.
B. FRANKLIN.

North Carolina.
Tuomas Mifflix,

Wu. BLOUNT,
ROBERT MORRIS,

Rich'd DOBBS SPAIGHT,
Geo: CLYMER,

HU. WILLIAMSON.
Tho: FITZSIMONS,

South Carolina.
JARED INGERSOLL,

JOHN RUTLEDGE.
JAJES WILSON,

CHARLES COTES WORTI PIXCKNEY,
GOUV: MORRIS.

CHARLES PINCKNEY,
Delaware.

PIERCE BUTLER
GEO: READ,

Georgia.
GUNNING BEDFORD, JUN'R, WILLIAM Fuw,
JOHN DICKINSON,

ABRAHAJ BALDWIS.
RICHARD BASSETT,
JACO: BROOM.

Attest: WILLIAM JACKSON, Secretary.

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